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Religion In The Public Schools: A Joint Statement Of
Current Law
Copied with permission from Interfaith
Alliance
April 1995
The following document was not produced by the U.S. Department of Education.
Secretary Riley, however, is a strong supporter of continuing efforts
by religious and education organizations to find common ground on the
issue of religious expression in public schools. The Secretary has said
many times before, "Public schools should not be hostile to religion."
This document reflects a significant new effort by religious groups to
find common ground.
All below links are to sections on this page.:
Introduction
Student Prayers
Graduation Prayer and Baccalaureates
Official Participation or Encouragement of Religious
Activity
Teaching about Religion
Student Assignments and Religion
Distribution of Religious Literature
Religious Persuasion Versus Religious Harassment
Equal Access Act
Religious Holidays
Teaching Values
Excusal from Religiously Objectionable Lessons
Student Garb
Released Time
Appendix: Organizational Contacts
Introduction
The Constitution Permits much private religious activity in and about
the public schools. Unfortunately, this aspect of constitutional law is
not as well known as it should be. Some say that the Supreme Court has
declared the public schools "religionfree zones" or that the
law is so murky that school officials cannot know what is legally permissable,
The former claim is simply wrong. And as to the latter, while there are
some difficult issues, much has been settled. It is also unfortunately
true that public school officials, due to their busy schedules, may not
be as fully aware of this body of law as they could be. As a result, in
some school districts some of these rights are not being observed. The
organizations whose names appear below span the ideological, religious
and political spectrum. They nevertheless share a commitment both to the
freedom of religious practice and to the separation of church and state
such freedom requires. In that spirit, we offer this statement of consensus
on current law as an aid to parents, educators and students. Many of the
organizations listed below are actively involved in litigation about religion
in the school. On some of the issues discussed in this summary, some of
the organizations have urged the courts to reach positions different than
they did. Though there are signatories on both sides which have and will
press for different constitutional treatments of some of the topics discussed
bellow, they all agree that the following is an accurate statement of
what the low currently is.
Student Prayers
Students have the right to pray individually or in groups or to discuss
their religious views with their peers so long as they are not disruptive.
Because the Establishment Clause does not apply to purely private speech,
students enjoy the right to read their Bibles or other scriptures, say
grace before meal, pray before tests, and discuss religion with other
willing students listeners. In the classroom students have the right to
pray quietly except when required to be actively engaged in school activities
(e.g., students may not decide to pray just as a teacher calls on them).
In informal settings, such as the cafeteria or in the halls, student may
pray either audibly or silently, subject to the same rules of order as
apply to other speech in these locations. However, the right to engage
in voluntary prayer does not include, for example, the right to have a
captive audience listen or to compel other students to participate.
Graduation Prayer and Baccalaureates
School officials may not mandate or organize prayer at graduation, nor
may they organize a religious baccalaureate ceremony. If the school generally
rents out its facilities to private groups, it must rent them out on the
same terms, and on a firstcome firstserved basis, to organizers of privately
sponsored religious baccalaureate services, provided that the school does
not extend preferential treatment to the baccalaureate ceremony and the
school disclaims official endorsement of the program.
The courts have reached conflicting conclusions under the
federal Constitution on student-initiated prayer at graduation. Until
the issue is authoritatively resolved, schools should ask their lawyers
what rules apply in their area.
Official Participation or Encouragement
of Religious Activity
Teachers and school administrators , when acting in those capacities,
are representatives of the state, and, in those capacities, are themselves
prohibited from encouraging or soliciting student religious or antireligious
activity. Similarly when acting in their official capacities, teachers
may not engage in religious activities with their students. However, teachers
may engage in private religious activity in faculty lounges.
Teaching about Religion
Students may be taught about religion , but public schools may not teach
religion. As the U.S. Supreme Court has repeatedly said, "[i]t might
well be said that one's education is not complete with out a study of
comparative religion, or the history of religion and its relationship
to the advancement of civilization." It would be difficult to teach
art, music, lit literature and most social studies without considering
religious influences. The history of religion, comparative religion, the
Bible (or other scripture)as literature (either as a separate course or
within some other existing course), are all permissible public school
subjects. It is both permissible and desirable to teach objectively about
the role of religion in the history of the United States and other countries.
One can teach that the Pilgrims come to this country with a particular
religious vision, that Catholics and others have been subject to persecution
or that many of those participating in the abolitionist, women's suffrage
and civil rights movements had religious motivations.
These same rules apply to the recurring controversy surrounding
theories of evolution. Schools may teach about explanations of life on
earth, including religious ones (such as "creationism"), in
comparative religion or social studies classes. In science class, however,
they may present only genuinely scientific critiques of, or evidence for,
any explanation of life on earth, but not religious critiques (beliefs
unverifiable by scientific method methodology). Schools may not refuse
to teach evolutionary theory in order to avoid giving offense to religion
nor may they circumvent these rules by labeling as science an article
of religious faith. Public schools must not teach as scientific fact or
theory any religious doctrine, including "creationism," although
any genuinely scientific evidence for or against any explanation of life
may be taught. Just as they may neither advance nor inhibit any religious
doctrine, teachers should not ridicule, for example, a student's religious
explanation for life on earth.
Student Assignments and Religion
Students may express their religious beliefs in the form of reports, home
work and artwork, and such expressions are constitutionally protected.
Teachers may not reject or correct such submissions simply because they
include a religious symbol or address religious themes. Likewise, teachers
may not require students to modify, include or excise religious views
in their assignments, if germane. These assignments should be judged by
ordinary academic standards of substance, relevance, appearance and grammar.
Somewhat more problematic from a legal point of view are
other public expressions of religious views in the classroom. Unfortunately
for school officialss, there are traps on either side of this issue, and
it is possible that litigation will result no matter what course is taken.
It is easier to describe the settled cases than to state clear rules of
law. Schools must carefully steer between the claims of student speakers
who assert a right to express themselves on religious subjects and the
asserted rights of student listeners to be free of unwelcome religious
persuasion in a public school classroom. a. Religious or antireligious
remarks made in the ordinary course of class room discussion or student
presentations are permissible and constitute a protected right. If in
a sex education class a student remarks that abortion should be illegal
because God has prohibited it, a teacher should not silence the remark,
ridicule it, rule it out of bounds or endorse it, any more than a teacher
may silence a student's religiously-based comment in favor of choice.
b. If a class assignment calls for an oral presentationn on a subject
of the student's schooling, and, for example,the student responds by conduction
a religious service, the school has the right as well as the duty too
prevent itself from being used as a church. Other students are not voluntarily
in attendance and cannot be forced to become an unwilling congregation.
c. Teachers may rule out of order religious remarks that are irrelevant
to the subject at hand. In a discussion of Hamlet's sanity, for example,
a student may not interject views on creationism.
Distribution of Religious Literature
Students have the right to distribute religious literature to their schoolmates,
subject to those reasonable time, place, and manner or other constitutionally
acceptable restrictions imposed on the distribution of all nonschool literature.
Thus, a school may confine distribution of all literature to a particular
table at particular times. It may not single out religious literature
for burdensome regulation.
Outsiders may not be given access to the classroom to distribute religious
or antireligious literature. No court has yet considered whether, if all
other community groups are permitted to distribute literature in common
areas of public schools, religious groups must be allowed to do so on
equal terms subject to reasonable time, place and manner restrictions.
"See You At The Pole"
Student participation in before or afterschool events, such as "see
you at the pole" is permissible. School officials, acting in official
capacity, may neither discourage nor encourage participation in such an
event.
Religious Persuasion Versus Religious Harassment
Students have the right to speak to, and attempt to persuade, their peers
about religious topics just as they do with regard to political topics.
But school officials should intercede to stop student religious speech
if it turns into religious harassment aimed at a student or a small group
of students. While it is constitutionally permissable for a student to
approach another and issue an invitation to attend church, repeated invitations
in the face of a request to stop constitute harassment. Where this line
is to be drawn in particular cases will depend on the age of the students
and other circumstances.
Equal Access Act
Student religious clubs in secondary schools must be permitted to meet
and to have equal access to campus media to announce their meetings, if
a school receives federal funds and permits any student noncurricular
club to meet during noninstructional time. This is the command Equal Access
Act. A noncurricular club is any club not related directly to a subject
taught or soon too be taught in the school. Although schools have the
right to ban all noncurriculum clubs, they may not dodge the law's requirement
by the expedient of declaring all clubs curriculum-related. On the other
hand, teachers may not actively participate in club activities and "nonschool
persons'" may not control or regularly attend club meetingss. The
Act's constitutionality has been upheld by the Supreme court,rejection
claims that the Act violates the Establishment Clause. The Act's requirements
are described in more detail in The Equal Access Act and the Public Schools:
Questions and Answer on the Equal Access Act*, a pamphlet published by
a broad spectrum of religious and civil liberties groups.
Religious Holidays
Generally public schools may teach about religious holidays and may celebrate
the secular aspects of the holiday day and objectively teach about their
religious aspects. They may not observe the holidays as religious events.
Schools should generally excuse students who do not wish to participate
in holiday eventss. Those interested in further details should see Religious
Holidays in the Public Schools: Questions and Answer*,a pamphlet published
by a broad spectrum of religious and civil liberties groups.
Excusal from Religiously Objectionable
Lessons
Schools enjoy substantial discretion to excuse individual students from
lessons which are objectionable to that student or to his or her parent
on the basis of religion. Schools can exercise that authority in ways
which would defuse many conflicts over curriculum content. If it is proved
that particular lessons substantially burden a student's free exercise
of religion and if the school cannot prove a compelling interest in requiring
attendance the school would be legally required to excuse the student.
Teaching Values
Schools may teach civic virtues, including honesty , good citizenship,
sportsmanship, courage, respect for the rights and freedoms of others,
respect for persons and their property, civility, the dual virtues of
moral conviction and tolerance and hard work. Subject to whatever rights
of excusal exist (see 15 above) under the federal Constitution and state
law, schools may teach sexual abstinence and contraception; whether and
how schools teach these sensitive subjects is a matter of educational
policy. However, these may not be taught as religious tenets. The mere
fact that most, if not all, religions also teach these values does not
make it unlawful to teach them.
Student Garb
Religious messages on Tshirts and the like may not be singled out for
suppression. Students may wear religious attire, such as yarmulkes and
head scarves, and they may not be forced to wear gym clothes that they
regard, on religious grounds, as immodest.
Released Time
Schools have the discretion to dismisss miss students to off premises
religious instruction, provided that schools do not encourage or discourage
participation or penalize those who do not attend. Schools may not allow
religious instruction by outsiderss on premises during the school day.
Appendix
Organizational Contacts for "Religion in the Public
Schools: A Joint Statement of Current Law"
American Civil Liberties Union
Beth Orsoff, William J. Brennan Fellow
202/544-1681 (x306)
American Ethical Union
Herbert Blinder
Director
Washington Ethical Action Office
301/229-3759
American Humanist Association
Frederick Edwords
Executive Director
800/743-6646
American Jewish Committee
Richard Foltin
Legislative Director/Counsel
202/785-4200
American Jewish Congress
Marc D. Stern
Co-Director
Commission on Law and Social Action
212/360-1545
American Muslim Council
Abdurahman M. Alamoudi
Executive Director
202/789-2262
Americans for Religious Liberty
Edd Doerr
Executive Director
301/598-2447
Americans United for Seperation of Church and State
Steve Green
Legal Director
202/466-3234
Anti-Defamation League
Michael Lieberman
Associate Director/Counsel
Washington Office
202/452-8320
Baptist Joint Committee
J. Brent Walker
General Counsel
202/544-4226
B'nai B'rith
Reva Price
Director
Political Action Network
202/857-6645
Christian Legal Society
Steven T. McFarland
Director
Center for Law and Religious Freedom
703/642-1070
Christian Science Church
Philip G. Davis, Federal Representative
202/857-0427
Church of the Brethren, Washington Office
Timothy A. McElwee, Director
202/546-3202
Church of Scientology International
Susan L. Taylor, Public Affairs Director, Washington Office
202/667-6404
Evangelical Lutheran Church in America,
Lutheran Office for Governmental Affairs
Kay S. Dowhower, Director
202/783-7507
Federation of Reconstructionist Congregations and Havurot
Rabbi Mordechai Liebling, Executive Director
215/887-1988
Friends Committee on National Legislation
Ruth Flower, Legislative Secretary/Legislative Education Secretary
202/547-6000
General Conference of Seventh-day Adventists
Gary M. Ross, Congressional Liaison
301/680-6688
Guru Gobind Singh Foundation
Rajwant Singh, Secretary
301/294-7886
Interfaith Alliance
Jill Hanauer, Executive Director
202/639-6370
Interfaith Impact for Justice and Peace
James M. Bell, Executive Director
202/543-2800
National Association of Evangelicals
Forest Montgomery, Counsel, Office of Public Affairs
202/789-1011
National Council of Churches
Oliver S. Thomas, Special Counsel for Religious and Civil Liberties
615/977-9046
National Council of Jewish Women
Deena Margolis, Legislative Assistant
202/296-2588
National Jewish Community Relations Advisory Council (NJCRAC)
Jerome Chanes, Director, Domestic Concerns
212/684-6950
National Ministries, American Baptist Churches, USA
Rene Ladue, Program Assistant, Office of Government Relations
202/544-3400
National Sikh Center
Chatter Saini, President
703/734-1760
North American Council for Muslim Women
Sharifa Alkhateeh, Vice-President
703/759-7339
People for the American Way
Elliot Mincberg, Legal Director
202/467-4999
Presbyterian Church (USA)
Eleonora Giddings Ivory, Director, Washington Office
202/543-1126
Reorganized Church of Jesus Christ of Latter Day Saints
W. Grant McMurray
First Presidency
816/521-3002
Union of American Hebrew Congregations
Rabbi David Saperstein, Director, Religious Action Center
202/387-2800
Unitarian Universalist Association of Congregations
Robert Alpern, Director, Washington Office
202/547-0254
United Church of Christ, Office for Church in Society
Patrick Conover, Acting Head of Office, Washington Office
202/543-1517
For Further information, please write to:
"Religion in the Public Schools"
15 East 84th Street, Suite 501
New York, NY 10028
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